APPEAL
from a judgment of the Superior Court of Kern County.
Richard J. Oberholzer, Judge.

Konrad
S. Lee, under appointment by the Court of Appeal, for
Defendant and Appellant.

B.C.
Barmann, Sr., County Counsel, and Jennifer E. Zahry, Deputy County
Counsel, for Plaintiff and Respondent.

OPINION

HARRIS,
Acting P.J.

*1
Michael P. appeals from an order terminating his parental rights
(Welf. & Inst.Code, § 366.26)
to his son and daughter.FN1
Much earlier in the proceedings, the court determined, based on
information it received from the Bureau of Indian Affairs (BIA),
that the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901
et seq.) did not apply to the children's case. Eleven
months later at the termination hearing, appellant through his attorney
claimed for the first time that he was Mohican. The
court observed it had not heard anything that would justify
changing the previous finding and proceeded to make its termination
findings and orders. Appellant contends the court should have suspended
the proceedings and sent new ICWA notice to the tribe.
As discussed herein, we disagree and will affirm.

FN1.
All statutory references are to the Welfare and Institutions Code
unless otherwise indicated.

PROCEDURAL
AND FACTUAL HISTORY

Because
appellant's late claim of Mohican Indian heritage and the court's
disinclination to act on that claim forms the basis for
this appeal, we limit our summary of the record to
the facts relevant to the issue raised.

The
department initiated the underlying dependency proceedings on October 13, 2004,
as to appellant's two toddler-aged children. At the time, appellant's
and the mother's regular use of methamphetamine disabled them from
providing the children with adequate care and supervision. During the
detention hearing conducted on the same date, the mother's attorney
represented to the court that his client had ?Indian
heritage by way of Tahon Indian tribe.?
FN2
Later in the same hearing, appellant's trial counsel advised the
court:

?The
father does believe he has American Indian heritage. He says
he actually has an enrollment number, but he doesn't remember
from which tribe. So he'll have to give that to
the social worker....
I can't provide a tribe name.?

A
day earlier, a social worker spoke with appellant, who stated
he and his brother were the only surviving members of
a federally-recognized tribe. When asked the name of his tribe
and his membership number, appellant replied he and his brother
were not members of a tribe, but he was told
he could be.

Later
in October 2004, the department mailed out forms then in
use to the BIA and the parents for notice and
to confirm the children's status as Indian children. The request
for confirmation form included identifying information about the father and
his relatives. It is undisputed that the department's notice efforts
complied with ICWA requirements.

On
November 9, 2004, the date of the jurisdictional hearing, the
department filed with the court a letter received from the
BIA stating that ICWA was not applicable to the children's
dependency. County counsel for the department in turn asked the
court to find this was ?not
an ICWA case.?
There being no objection or argument lodged, the court made
the requested finding and thereafter proceeded to exercise its jurisdiction
over the children. A month later, at the dispositional hearing,
the court reiterated its finding that ICWA did not apply
in this case. During that hearing, the court also adjudged
the children dependents, removed them from parental custody, and ordered
reunification services. Notably, neither parent appealed from the disposition.

*2
Over the next six months, neither parent made much effort
to reunify with their young children. Their inaction led the
court to terminate reunification services and set the case for
a section 366.26 hearing on September 6, 2005, to select
and implement a permanent plan for each child.

At
the September 6th hearing, the department submitted the matter on
its social study which included an assessment that each child
was adoptable as well as a recommendation that the court
find the children adoptable and terminate parental rights. In response,
counsel for appellant stated:

?...
On behalf of the Father, your Honor, we would be
objecting to the recommendation.

?Also,
for the record, the Father is claiming this morning, although
he has claimed in the past to have unknown American
Indian heritage, he is Mohican, that he is a registered
member of the tribe and he does not have his
registration number with him, and that that tribe is in
upstate New York.?

The
department countered by reminding the court of the previous ICWA
inquiry made and the court's November 2004 finding. County counsel
added ?[s]o
unless [appellant] has new evidence, I believe we are going
to ask the Court to move forward this morning.?

Apparently,
appellant had nothing further to offer, as the court observed:

?...
I haven't heard anything that would justify changing the finding
that was previously made.?

The
court thereafter found each child adoptable and terminated parental rights.

DISCUSSION

Appealability

As
a preliminary matter, respondent complains appellant has forfeited his opportunity
to challenge the court's decision not to reopen the ICWA
issue because he never challenged, by appeal or writ petition,
the court's 2004 finding that ICWA did not apply. The
department relies heavily on this court's decision in In
re Pedro N.
(1995) 35 Cal.App.4th 183. Despite respondent's argument otherwise, we fail
to see how appellant has forfeited review of the juvenile
court's implicit decision not to reopen the issue of ICWA
notice.

In
re Pedro N., supra,
involved a situation in which a parent provided Indian heritage
information at a dispositional hearing upon which neither the court
nor the child welfare service department apparently acted. The mother
did not challenge the court's inaction, however, until the court
terminated her rights approximately two years later. We held that
because the mother could have challenged the court's decision to
proceed without giving ICWA notice at the dispositional hearing but
did not do so, she was foreclosed from raising the
issue on appeal from the order terminating her parental rights.
(In
re Pedro N., supra,
35 Cal .App.4th at p. 189.)

Appellant
in this case does not seek to challenge the juvenile
court's 2004 finding. Indeed, he acknowledges its propriety. He disputes
rather the manner in which the court handled the matter
at the September 2005 termination hearing. Having filed a timely
notice of appeal from the court's September 2005 decision, appellant
is entitled to our review.

ICWA
Notice

*3
As previously mentioned, appellant contends that once he claimed Mohican
heritage, the juvenile court should have stopped the section 366.26
hearing and required the department to provide ICWA notice to
the Mohican tribe. He cites well-settled case law regarding the
importance of ICWA notice, the low threshold for giving notice,
and the prerogative of a tribe, not a state court,
to determine Indian child status. (See e.g. In
re Kahlen W.
(1991) 233 Cal.App.3d 1414, 1421 & In
re Junious M.
(1983) 144 Cal.App.3d 786, 792.) Respondent counters that given the
prior notice to the BIA, along with appellant's inconsistent statements
about possible tribal membership, the trial court properly could conclude
the original notice to the BIA sufficed and ICWA required
no further notice.

ICWA
requires notice be given pursuant to its terms whenever ?the
court knows or has reason to know?
the child is an Indian child. (25 U.S.C. § 1912(a).)
FN3
Federal Guidelines on ICWA-which urge a liberal construction of ICWA
to further its preferences-have interpreted ?reason
to know?
to mean ?reason
to believe.?
(Guidelines; Guidelines for State Courts; Indian Child Custody Proceedings (44
Fed.Reg. 67584-67595, at p. 67586 (Nov. 26, 1979).) In turn,
California courts have adopted ?reason
to believe?
as the relevant standard and have set a low threshold
to trigger the notice requirements of the federal law. (In
re Kahlen W., supra,
233 Cal.App.3d at p. 1422; In
re Junious W., supra,
144 Cal.App.3d at p. 788.) In other words, the Indian
status of a dependent child need not be certain. (In
re Kahlen W., supra,
233 Cal.App.3d at p. 1422.) A minimal showing that the
child may be an Indian child is all that is
required. (In
re Antoinette S.
(2002) 104 Cal.App.4th 1401, 1407.)

FN3.
25 United States Code section 1912(a) states:

?In
any involuntary proceeding in a State court, where the court
knows or has reason to know that an Indian child
is involved, the party seeking the foster care placement of,
or termination of parental rights to, an Indian child shall
notify the parent or Indian custodian and the Indian child's
tribe, by registered mail with return receipt requested, of the
pending proceedings and of their right of intervention. If the
identity or location of the parent or Indian custodian and
the tribe cannot be determined, such notice shall be given
to the Secretary in like manner, who shall have fifteen
days after receipt to provide the requisite notice to the
parent or Indian custodian and the tribe. No foster care
placement or termination of parental rights proceeding shall be held
until at least ten days after receipt of notice by
the parent or Indian custodian and the tribe or the
Secretary: Provided,
That the parent or Indian custodian or the tribe shall,
upon request, be granted up to twenty additional days to
prepare for such proceeding.?

This
case is a classic example of the foregoing. At the
outset, appellant claimed Indian heritage but could not identify a
particular tribe. Consequently, there was reason to believe appellant's children
might be Indian. ICWA directs that if the identity of
the tribe cannot be determined, the notice which would otherwise
be sent to the tribe shall be given in the
same manner to the Secretary of the Interior's designee, the
BIA. The BIA in turn shall have 15 days after
receipt to provide the requisite notice to the tribe. (25
U.S.C. § 1912(a).)

?Under
the statutory scheme, the burden of identifying and providing notice
to the proper tribe in these circumstances shifts
from the state court to the [the BIA], who presumably
has more resources and skill with which to ferret out
the necessary information.?
(In
re Kahlen W., supra,
233 Cal.App.3d at p. 1422.)

It
is undisputed that the department in this case complied with
ICWA by sending the requisite notice and family-identifying information to
the BIA. Furthermore, the BIA responded to the department's inquiry,
stating that ICWA did not apply to these proceedings. As
one appellate court has explained,

*4
?
?Absent
a contrary determination by the tribe that is alleged to
be the Indian child's tribe, a determination by the Bureau
of Indian Affairs that a child is or is not
an Indian child is conclusive.?
(Guidelines, supra,
at p. 67586.) The commentary explains, ?Because
of the Bureau of Indian Affairs' long experience in determining
who is an Indian for a variety of purposes, its
determinations are also entitled to great deference. [Citation.]?
?
(In
re Junious M., supra,
144 Cal.App.3d at p. 794.)

It
was under these circumstances that the juvenile court ruled in
2004 that ICWA did not apply to these proceedings. Although
appellant acknowledges that the department complied with ICWA notice requirements
in 2004, the BIA determined ICWA was inapplicable and the
court ruled accordingly, he essentially ignores the effect of these
circumstances once he claimed Mohican Indian heritage at the 2005
section 366.26 hearing. He apparently assumes his claim rendered those
previous events meaningless.

However,
appellant fails to cite and we are unaware of any
legal authority supporting such a position. To the extent appellant
would argue his claim of Mohican Indian heritage created a
new ?reason
to believe?
his children may be Indian, we are not persuaded.

First,
appellant's approach would render useless ICWA's provision for alternative service
of notice on BIA and the trial court's ability to
defer to a BIA determination. It would result in potentially-tremendous,
judicial inefficiency as well as abuse.

Second,
although ICWA does create a remedy to invalidate a dependency
action (25 U.S.C. § 1914),
that remedy depends, in relevant part, on there having been
a violation of any provision of section 1912 regarding notice.
Here, it is undisputed that section 1912 was not violated
in this case.

Third,
existing case law describing the threshold for giving ICWA notice
involves situations where there was no compliance with ICWA despite
reason to believe that a dependent child may be an
Indian child. Those factual scenarios are so dissimilar to this
matter as to be of little use in our analysis.
Here, at the point appellant claimed heritage in a particular
Indian tribe, there had already been full compliance with ICWA's
notice requirements as well as a BIA determination that the
act was inapplicable and a court's subsequent decision that ICWA
was inapplicable.

Moreover,
given the record in this case, appellant's late claim of
Mohican Indian heritage did not compel the court to find
a new reason to believe appellant's children may be Indian.
Here, the department complied with the notice requirements and no
tribe, Mohican or otherwise, had come forward to identify the
children as Indian. Alternatively, we agree with respondent that the
court could decide what weight to give appellant's last-minute Mohican
heritage claim given his prior inconsistent statements on the subject,
the lack of any explanation for the lateness of his
claim, and the fact that he first voiced his claim
on the date set for the children's permanency planning hearing.

*5
A final note. Our opinion should not be read to
hold once an ICWA determination has been made, it is
set in stone and cannot be undone. When circumstances change
or new evidence emerges calling into question a prior ruling,
California's dependency scheme provides an ?
?escape
mechanism?
?
through section 388 to allow a court to consider new
information. (In
re Marilyn H.
(1993) 5 Cal.4th 295, 309.) We easily can envision situations
in which a parent could pursue relief pursuant to section
388 from a prior determination that ICWA did not apply.
Simply naming a tribe alone, however, in our view would
not amount to changed circumstances or new evidence when the
parent previously stated he did not know his tribal heritage.
At a minimum, the parent must explain on what basis
he is
now claiming heritage in the particular tribe. While section 388
also requires that modification be in the child's best interests,
that element can be easily satisfied in the case of
ICWA notification because ICWA is based on a presumption that
it is in the best interests of an Indian child
not to be separated from the tribe. (In
re Kahlen W., supra,
at 1425.)

For
all the foregoing reasons, we conclude the juvenile court did
not err by refusing to order new ICWA notice.